In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1449

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VINCENT SHARP,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 04 CR 5—John Daniel Tinder, Judge.

____________

ARGUED SEPTEMBER 27, 2005—DECIDED FEBRUARY 1, 2006

____________

Before FLAUM, Chief Judge, and BAUER and SYKES,

Circuit Judges.

BAUER, Circuit Judge. Vincent Sharp pleaded guilty to

one count of distribution of five kilograms or more of

a substance containing cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A)(ii). The district court sentenced Sharp to 235 months’ imprisonment. On appeal,

Sharp claims that the district court erred by failing to

give notice of its intention to deviate from the presentence report (PSR), and that his sentence was unreasonable.

We affirm.
2 No. 05-1449

I. Background

On January 14, 2004, a grand jury indicted Sharp on one

count of distribution of five kilograms or more of a substance containing cocaine and one count of possession

with intent to distribute 500 grams or more of a mixture

containing cocaine. On March 24, 2004, a plea agreement

and petition to enter a plea of guilty were filed in the

district court. Sharp agreed to plead guilty to the distribution count with an applicable base offense level of 34

pursuant to U.S.S.G. § 2D1.1(c)(3). The parties reserved the

right to argue over an adjustment for possession of

a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1), and

agreed that the court should grant a two-level reduction if

Sharp continued to accept responsibility for his criminal

conduct.

Sharp appeared at the April 9, 2004 district court plea

hearing with counsel Michael T. Conway. Under oath,

Sharp acknowledged that the plea agreement accurately

reflected the parties’ agreement concerning the application of the Sentencing Guidelines. He also told the court

that he understood that the guilty plea would be binding irrespective of the court’s determination of the applicable Guidelines.

The government called Detective Rob Foster of the

Metropolitan Drug Task Force to testify to the factual basis

for the guilty plea. In July 2003, he received information

that Sharp was distributing large amounts of drugs from

his residence in Indianapolis. After several controlled purchases of cocaine from Sharp, Detective Foster

applied for and obtained a search warrant for the residence.

Officers executed the warrant when Sharp was at home on

August 11, 2003. After receiving Miranda warnings, Sharp

told Detective Foster that he had approximately one

kilogram of cocaine, a firearm, and drug paraphernalia in

the residence. During the search, officers located 1126
No. 05-1449 3

grams of cocaine, a firearm, a quantity of marijuana, digital

scales, plastic baggies, and more than $13,000 cash.

After his arrest and transport to the police station, Sharp

told Detective Foster that he had purchased the cocaine the

day before for approximately $23,000. He told Detective

Foster that he had been selling cocaine for approximately

fourteen years and that he had distributed approximately

one kilogram of cocaine every month for the past year and

a half. Sharp stated that he also sold crack cocaine.

At the plea hearing, Conway stated that Sharp had no

objections to the factual basis presented by Detective

Foster, except that he denied being involved in the enterprise for fourteen years. Instead, Sharp claimed to have

been employed in his current position for fourteen years.

The following exchange then transpired:

The Court: So there is a dispute about the length of

his involvement in the activity as opposed

to what the officer testified?

Mr. Conway: Right. We’re not saying he didn’t say

that. Maybe just in the confusion . . .

The Court: Other than that, is that pretty much the

way it happened, Mr. Sharp?

Mr. Sharp: Yes.

The district court accepted Sharp’s guilty plea, adjudged

Sharp guilty of the distribution count, and ordered the

preparation of a PSR.

The resulting PSR indicated that Sharp was responsible for 19.216 kilograms of cocaine and 305.76 grams

of marijuana, and that his unadjusted base offense level

was 34. The amount of cocaine was based on Sharp’s

statement to Detective Foster that “he had been dealing

approximately one kilogram of cocaine every month for

the past year and a half.” The PSR included a two-level
4 No. 05-1449

upward adjustment for possessing a firearm during the

commission of the offense and a three-level downward

adjustment for acceptance of responsibility. Sharp expressed only the following two objections to the PSR:

The defendant objects to paragraph 19 of the presentence report on the grounds that § 2D1.1(b)(1) does

not apply, as the firearm found in the defendant’s

bedroom has no connection or nexus to the narcotics trafficking. The defendant would also note a typographical error in paragraph 48 of the presentence investigation report in that 1982 should be 1989.

Sharp appeared with Conway at the January 26, 2005

sentencing hearing at the district court. Conway examined

Sharp to establish that he used and kept the gun independently of any drug deals. On cross-examination, Sharp for

the first time claimed that the PSR was incorrect and that

he was not responsible for the 19 kilograms of cocaine. He

also denied telling Detective Foster that for the past year

and a half he had received one kilogram of cocaine every

month. Sharp gave the following answers:

Q. . . . do you remember telling him you had been

dealing in the kilogram level for a year and a

half?

A. No.

Q. Okay, so that is an incorrect statement?

A. Right.

* * *

Q. What is alleged in the presentence report . . . is

that you are responsible for 19—over 19 kilograms of cocaine.

A. No.
No. 05-1449 5

Q. Well, the presentence report says that. Is that not

true?

A. Nineteen kilograms?

Q. Yes, sir.

A. No, that is not true.

Instead, Sharp testified that he had bought and sold

only five kilograms of cocaine and that he had only been

dealing drugs for a year and a half. After Sharp’s testimony,

the government played an audiotape recording of Sharp’s

post-arrest statement to Detective Foster. The tape confirmed the Detective’s testimony that Sharp told him that

he sold one kilogram of cocaine per month for the past year

and a half, and that he had been dealing drugs “off and on,

for 14 years.”

Based on Sharp’s conduct at the sentencing hearing, the

government argued that he was no longer accepting responsibility for his criminal conduct and was, by providing the

district court with materially false information, attempting

to obstruct justice. The court denied Sharp any adjustment

for acceptance of responsibility and gave him a two-level

enhancement for obstruction of justice. After setting the

total offense level at 38 and the guideline range at 235 to

293 months, the court sentenced Sharp to a term of 235

months’ imprisonment, followed by a term of five years

supervised release. On February 3, 2005, Sharp filed a

notice of appeal, arguing: (1) that the district court was

required to give notice prior to the sentencing hearing that

it intended to deviate from the PSR; and (2) that the

sentence of 235 months was unreasonable.

II. Discussion

A. Notice

Sharp primarily argues that he was entitled to notice,

prior to the sentencing hearing, that the district court
6 No. 05-1449

1 Other Courts of Appeals have considered whether the notice

requirement of Rule 32(h) survives United States v. Booker, 125

S.Ct. 738 (2005), in which the Supreme Court rendered the

Sentencing Guidelines advisory. See, e.g., United States v. Monroy,

135 Fed. Appx. 190, 193 (10th Cir. 2005) (holding that, postBooker, departures remain “subject to Rule 32(h)”); but cf. United

States v. Simmerer, 2005 WL 3068095, at *3 (11th Cir. 2005)

(holding that district court’s failure to comply with Rule 32(h)’s

(continued...)

intended to reject the PSR recommendation of acceptance of

responsibility and to impose instead an enhancement for obstruction of justice. Although this Court ordinarily reviews for clear error a district court’s decision not

to provide notice of its intention to depart from the guidelines, the defendant’s failure to object at sentencing results in plain error review. See United States v. Otis, 107

F.3d 487, 489 (7th Cir. 1997); United States v. Jackson, 32

F.3d 1101, 1104 (7th Cir. 1994). Plain error exists when

there is an error which is clear or obvious and which affects

substantial rights. United States v. Sumner, 265 F.3d 532,

539 (7th Cir. 2001). At a minimum, the error must be clear

under current law. Id. (quoting United States v. Olano, 507

U.S. 725, 734 (1993)).

Rule 32 of the Federal Rules of Criminal Procedure

provides:

Before the court may depart from the applicable sentencing range on a ground not identified for departure

either in the presentence report or in a

party’s prehearing submission, the court must give

the parties reasonable notice that it is contemplating such a departure. The notice must specify any

ground on which the court is contemplating a departure.

Fed. R. Crim. P. 32(h).1

 The Sentencing Guidelines simi-
No. 05-1449 7

1 (...continued)

notice provision cannot be plain error because “no precedent from

this court or from the Supreme Court establish[es] that Fed. R.

Crim. P. 32 applies to a post-Booker upward variance”). Because

the parties did not brief this issue, however, we will not address

it here.

larly require that the court provide the parties with an

adequate opportunity to present information when a

sentencing factor is reasonably in dispute. U.S.S.G.

§ 6A1.3(a). In Burns v. United States, the Supreme Court

held that “before a district court can depart upward on

a ground not identified as a ground for upward departure either in the presentence report or in a prehearing

submission by the Government, Rule 32 requires that

the district court give the parties reasonable notice that it is

contemplating such a ruling.” Id. at 138. The notice must

“specifically identify” the reason for the departure. Id. at

138-39.

Although the notice requirement for adjustments is

“less exacting than the one applicable to departures,” Rule

32 “mandates that the defendant receive some notice

of potential adjustments.” United States v. Thomas, 969

F.2d 352, 356 (7th Cir. 1991). Extending the Burns reasoning, this Court has held that “simply being aware of facts

which may warrant an adjustment is not sufficient to

satisfy Rule 32’s notice requirement.” United States v.

Jackson, 32 F.3d 1101, 1108 (7th Cir. 1994). Instead,

defense counsel must have a full opportunity to challenge

disputed factors relating to an adjustment within the

Guidelines after being informed that they will be at issue at

sentencing. Id. If the PSR or the prosecutor’s recommendation does not identify the basis for the potential sentencing

increase, then “the Judge must inform the defendant, a

sufficient time in advance of sentencing (i.e. [sic] not during

the actual sentencing), of the specific grounds that the court
8 No. 05-1449

is considering relying on to increase the terms of confinement.” Id.

1. Acceptance of Responsibility

Sharp first argues that this Court’s case law compelled

the district court to give notice of its decision to deny

Sharp’s three-level adjustment for acceptance of responsibility. The Sentencing Guidelines provide for a twolevel reduction in the offense level “if the defendant clearly demonstrates acceptance of responsibility for his offense,”

and an additional one-level reduction upon a government

motion “stating that the defendant has assisted authorities

in the investigation or prosecution of his own misconduct by

timely notifying authorities of his intention to plead guilty.”

U.S.S.G. § 3E1.1. A defendant who “falsely denies, or

frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n.1(a).

Conway conceded at argument before the district court that

the facts contested by Sharp, particularly the amount of

cocaine, constituted relevant conduct. Because the denial of

the reduction was therefore justified, the only remaining

issue is whether the district court was required to provide advance notice of its intent to deny.

This Court has never held that a defendant is entitled

to notice from the district court of a downward adjustment for acceptance of responsibility. To the contrary, this

Court has expressed skepticism of the argument that

defendants must be provided “notice and opportunity to

rebut evidence that at best serves only to limit the possibility of a downward adjustment.” United States v.

Beltran, 109 F.3d 365, 370 (7th Cir. 1997). In United States

v. Saunders, this Court reviewed the district court’s

denial, after a jury trial, of a reduction based on Saunders’

acceptance of responsibility. 973 F.2d 1354 (7th Cir. 1992).
No. 05-1449 9

This Court held that the Burns notice requirement

was inapplicable because the district court “simply chose

not to accept a presentence report recommendation.” Id. at

1364. In so holding, the Court found that Saunders was not

caught off guard because “the inclusion of that recommendation in the report, by definition, gave Saunders notice that

it was an open question at the sentencing hearing.” Id. As

in Saunders, Sharp was not caught off guard by the district

court’s action because the PSR included the recommendation. Its inclusion gave Sharp notice that the issue could be

raised, although he assumed it would not be an open

question at the sentencing hearing because the parties had

agreed to the reduction. In Sharp’s words, “the parties at

Sharp’s sentencing hearing anticipated they would be

arguing solely over the role that a firearm Sharp possessed

played in his offense,” and not the acceptance of responsibility issue.

Based on the plain language of the plea agreement

and the PSR, however, this assumption was unjustified.

Sharp had ample notice, from the plea agreement and from

the court, that the recommendation of a two-level reduction

was conditional in nature and that the government could

decide not to file a motion recommending the additional

reduction if Sharp did not continue to cooperate. See United

States v. Brumfield, 301 F.3d 724, 731 (7th Cir. 2002)

(finding that both the plea agreement and the PSR provided

the defendant with notice). The language of the plea

agreement first provided Sharp with notice. In it the parties

used conditional language to describe the acceptance of

responsibility reduction:

To date, Sharp has demonstrated acceptance of responsibility for his criminal conduct. In the event he continues to accept responsibility, his offense level should be

decreased by two levels, pursuant to USSG § 3E1.1(a).

* * *
10 No. 05-1449

In the event he continues to accept responsibility, at the

time of sentencing. [sic] the United States will file a

motion that informs the Court of the same and enables

the Court to decrease Sharp’s offense level by one

additional level, pursuant to USSG § 3E1.1(b).

By its terms, the agreement between the parties conditioned the government’s recommendation of both the twolevel reduction and the additional one-level reduction on

Sharp’s continued cooperation. Sharp did not object to

this portion of the plea agreement, just as he did not object to the recommendation in the PSR. In addition, the

district court admonished Sharp at the plea hearing:

In the event you continue to cooperate, the United

States will file a motion to enable the Court to decrease

your offense level by one additional level under the

acceptance of responsibility provisions of Subsection B.

When questioned by the court, Sharp affirmed that this was

the agreement, again plainly conditional, that he entered

into with the government. Taken together, the plea agreement, the court’s admonishment, and the PSR recommendation gave Sharp notice that, if he did not continue to

cooperate, the government could nullify the acceptance of

responsibility reduction.

At the sentencing hearing, Sharp did not continue to

cooperate. After noting that Sharp appeared to be “very

forthcoming” with law enforcement on the night of his

arrest, the district court found that

sadly, Mr. Sharp took the stand here and gave materially false testimony on material points, specifically

with respect to the length of his kilogram quantity

distributorship of cocaine. It was a fact clearly set

out in the presentence report on which the calculation of the base offense level was indicated. It was not

indicated to be an objection by the defense, and adequate time was given to object to that.
No. 05-1449 11

Sharp’s testimony directly contradicted the PSR, Detective Foster’s testimony, the plea agreement, and the

audiotape. The court noted that at the plea hearing, neither

of Sharp’s two objections to the factual predicate related to

the issues that he later disputed at the sentencing hearing.

Because “he was not truthful or forthcoming with the Court

and was attempting to minimize his involvement in a

materially false way,” the court found that Sharp was not

entitled to the reduction for acceptance of responsibility.

Sharp argues that he was entitled to notice under this

Court’s decision in United States v. Sienkowski, 359 F.3d

463 (7th Cir. 2004). In holding that the district court abused

its discretion by not providing the government notice of its

intent to reject an enhancement agreed to by both parties,

this Court noted that the enhancement had not been in

dispute until the district court raised the issue at the

sentencing hearing. Id. at 470. Defendant argues that in

this case, as in Sienkowski, the acceptance of responsibility

reduction was not in dispute until the sentencing hearing

and thus the court was required to provide notice. But here,

unlike in Sienkowski, the issue arose at the sentencing

hearing because of defendant’s false testimony. Based on

Sharp’s answers on cross-examination, the government

announced that it no longer intended to honor the plea

agreement with respect to the recommended two-level

reduction, or to file the § 3E1.1D motion to afford Sharp the

additional one-level reduction for acceptance of responsibility. The government withdrew its motion at the sentencing

hearing and argued against the previously agreed-to

reduction because Sharp contested relevant

conduct—namely, that he had sold approximately one

kilogram of cocaine for the past year and a half—and did

not truthfully admit his criminal conduct.

Sharp’s actions caused both the government’s reaction

and the court’s subsequent ruling. The court could not

possibly have given advance notice of its intent to deny
12 No. 05-1449

the reduction for the simple reason that up until the

hearing it had no such intent. The transcript of the sentencing hearing is replete with declarations of the court’s

surprise at the sudden turn of events; for instance, the court

stated that he was “taken aback” by Sharp’s change of

heart. The court then anticipated the government’s arguments on the issue by asking, “Is there a dispute about

acceptance of responsibility?” Although Sharp now characterizes this question as improper because it was

unprompted, the court only proposed the question after

Sharp had testified and the government had played back

the audiotaped conversation between Sharp and Detective

Foster. The government played it back for the stated reason

that the audiotaped conversation was “different in different

respects from the answers he gave on the stand.” Instead of

raising the acceptance of responsibility issue sua sponte,

then, the court merely anticipated the argument that the

government pursued based on the evidence presented.

Thus, the situation in Sienkowski is distinguishable

from the present matter. Instead of the court and the

prosecution experiencing surprise at the defendant’s

testimony, in that case the defendant and the prosecution

were “surprised by the district court’s announcement.”

Sienkowski, 359 F.3d at 469. In Sienkowski, this Court

specifically observed that its holding was “one of narrow

applicability” and that “a variance in any of the other

aforementioned factors would likely compel a different

outcome.” Id. at 470. Here, the fact that the surprise

resulted from Sharp’s changed testimony, and not from

the district court’s sua sponte action, is a distinction that

compels a contrary result. The district court did not commit

clear error.

2. Obstruction of Justice

Sharp next argues that the court was required to provide notice of its intent to adjust his sentence for obstruc-
No. 05-1449 13

tion of justice. A district court may increase a defendant’s

base offense level by two levels for obstruction of justice “if

the defendant willfully obstructed or impeded, or attempted

to obstruct or impede, the administration of justice during

the investigation, prosecution, or sentencing of the instant

offense.” U.S.S.G. § 3C1.1. The increase only applies where

the obstructive conduct related to “the defendant’s offense

of conviction and any relevant conduct.” U.S.S.G.

§ 3C1.1(B)(I). One example of obstructive conduct is

“providing materially false information to a judge or

magistrate. . . .” U.S.S.G. § 3C1.1, cmt. n.4(f); see also

United States v. Carroll, 346 F.3d 744, 748 (7th Cir. 2003).

Sharp does not argue that the district court’s decision to

increase was unjustified; the only issue is whether the court

was required to provide notice of its intention to increase.

Sharp argues that this Court’s Jackson decision obligated

the district court to provide notice of its intent to impose an

obstruction of justice enhancement. In Jackson, this Court

held that notice from the district court is required for

sentencing adjustments unless the defendant is “aware of

facts which may warrant an adjustment” and has “actual

knowledge that those facts will be considered in sentencing.” 32 F.3d at 1108. Sharp claims that this case is analogous to Jackson because at the sentencing hearing both

parties anticipated arguing solely over another issue, not

the one raised by the judge. There was, in Sharp’s words, no

“indication prior to the hearing that Mr. Sharp obstructed

justice,” just as there was no prior indication of the court’s

intention to consider an enhancement for abuse of position

of trust in Jackson.

In Jackson, however, this Court carefully distinguished the defendant’s case from several other cases,

including United States v. Willis, 997 F.2d 407 (8th Cir.

1993). In Willis, the Eighth Circuit upheld a district court’s

sua sponte enhancement for obstruction of justice even

though the PSR stated that no information indicated that
14 No. 05-1449

the defendant impeded justice. The sentencing

court imposed the obstruction enhancement based on its

finding that Willis had given perjured testimony at trial.

Because Willis knew of “the potential bases for enhancement in the guidelines and the potential factual bases

in the trial testimony,” the court reasoned that Willis

could not have been unfairly surprised by the district

court’s decision to consider the enhancement. This Court

expressly stated that Jackson differed from Willis “because

Jackson did not have knowledge of the facts giving rise

to the sentencing enhancement,” id. at 1108, whereas

“Willis was obviously aware that he had given perjured

testimony.” Id. at 1107. The Court in Jackson, then,

affirmed the authority of a district court to impose sua

sponte an enhancement for obstruction of justice where

the enhancement is predicated on the defendant’s false

testimony.

That is precisely what occurred here. The district

court found that Sharp, through his sworn testimony at the

sentencing hearing, was “attempting to minimize his

involvement in a materially false way.” Sharp was on notice

that doing so could result in a possible obstruction of justice

enhancement. The PSR contained no indication of that

possibility for the logical reason that Sharp had cooperated

with the government up until the sentencing hearing. The

plea agreement that Sharp signed, however, expressly

referenced that possibility: “Finally, my attorney has

informed me, and I understand, that if I provide or cause to

be provided materially false information to a judge,

magistrate-judge, or probation officer, then USSG § 3C1.1

allows the Court to impose a two (2)-level increase in the

offense level.” Based on Sharp’s undeniable awareness of

his own false testimony and the actual knowledge provided

by the plea agreement, it was not clear error for the district

court to decline to give notice that an obstruction of justice

enhancement could ensue.
No. 05-1449 15

B. Unreasonableness of the Sentence

Sharp also challenges his sentence as unreasonable. In

United States v. Booker, the Supreme Court held that

the Sentencing Guidelines were no longer mandatory

and that all sentences had to be reviewed for “unreasonableness.” 125 S.Ct. 738, 765-67 (2005). Although the Sentencing Guidelines are now advisory, sentencing

judges nevertheless must correctly compute the applicable sentencing range. Because the parties do not

dispute that the court properly calculated the guideline

range, this Court reviews the sentence for reasonableness. District courts must continue to consult the factors set

forth in 18 U.S.C. § 3553(a), see Booker, 125 S.Ct. at 766,

and a properly calculated sentence is entitled to

a rebuttable presumption of reasonableness. United

States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). This

standard is deferential; a defendant can only rebut the

presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors. Id.

The district court must discuss those factors “not in checklist fashion but instead in the form of an adequate statement of the judge’s reasons” for finding the sentence

appropriate for that defendant. United States v. Dean, 414

F.3d 725, 729 (7th Cir. 2005).

When sentencing Sharp, the district judge expressly

referenced several § 3553(a) factors. He examined the

nature of the offense, finding Sharp’s system of dealing to

be “a very professionally run, reasonably high volume

of distribution.” He took note of Sharp’s “very unusual

background” as a 42-year-old first-time offender who

had continuously been “well employed.” In addition to the

kinds of sentences available, the judge considered the

applicable sentencing range established for Sharp’s offense level. He thoroughly examined the need for the

sentence imposed, touching on all relevant issues from

affording adequate deterrence to providing Sharp with
16 No. 05-1449

needed training. The judge further focused on the need

to avoid unwarranted sentence disparities, and noted

that the sentence range of 235-293 months was merely

“suggested by the Guidelines” and not mandatory. Finally,

after deciding that all the § 3553(a) factors “would suggest that that sentence ought to be not at the top end of

that range, but more close to the lower end of the range,”

the judge imposed a sentence of 235 months. Because the

district court articulated a thorough rationale for the

sentence consistent with the § 3553(a) factors, and because Sharp offered no evidence to rebut the presumption, the sentence was reasonable.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-1-06